Two of the nation's preeminent legal experts on copyright law are siding with broadcasters in their legal fight against Aereo, a start-up service that transmits local television signals via the Internet.
In a brief filed at the Supreme Court,
The broadcasters are hoping that the high court will overturn last year's 2nd Circuit Court of Appeals in New York ruling that found Aereo's transmissions and recordings are not "public performances" of copyrighted material.
Aereo, which launched in 2012 and is available in 13 markets, transmits the over-the-air TV signals of broadcasters to consumers via tiny antennas. Subscribers pay between $8 and $12 a month for Aereo. The package also includes a cloud-based digital video recorder that can hold up to 60 hours of content.
Broadcasters charge that Aereo is violating copyright law and that they need to be compensated for the tranmission of thier signal. The fear is that if Aereo is found to be legal, it could threaten the revenues broadcasters get from other pay-TV distributors for their channels.
Aereo has countered that it is merely an antenna service. Interestingly, Aereo has cited Nimmer opinions in arguments in support of its service.
The Supreme Court is scheduled to hear oral arguments on Aereo next month. Broadcasters, including CBS,
Aereo plucks the signals of broadcasters and transmits them to the Internet via tiny antennae.
In their brief, Nimmer and Menell said the rationale of the lower court ruling "is that anyone could set up a rooftop antenna, so commercial services doing effectively the same thing should rest beyond liability."
The problem with that, they said, is that "Congress deliberately rejected that standard" in crafting the 1976 Copyright Act.
On Monday, the Deptartment of Justice also filed a brief siding with broadcasters.
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